The European Union faced another difficult year in 2021. The erosion of the rule of law continued in some EU Member States, while all of them faced challenges in reacting to subsequent waves of the covid-19 pandemic. Nevertheless, political developments in several Member States have sparked hope that newly elected governments will tackle the rule of law issues more vigorously. And the increased number of rule of law-related cases tackled by the European Court of Human Rights has shown that the rule of law crisis is a multi-level conflict that goes beyond a discussion on competencies of the EU and directly relates to Europe's human rights framework.
As we walk forward to the new year with France assuming the presidency of EU and new governments in some Member States taking their first steps, here’s a look back by DRI’s Jakub Jaraczewski and Nino Tsereteli at what went right and wrong with the rule of law in EU in 2021.
WHAT WENT RIGHT?
1. Pushback against the rule of law backsliding in EU Member States continues
This year was marked by unexpected victories of opposition parties in elections against ruling parties led by politicians implicated in corruption scandals. This signalled some degree of popular support for agendas that are pro-rule of law. The Czech opposition narrowly defeated Prime Minister Andrej Babis’ ANO party in a surprising turn of events and won a majority in the lower house of the Parliament in October 8-9 elections. Babis is highly controversial due to pervasive overlaps between his business interests and his politics.
In the 14 November elections, Bulgaria’s third this year, the new ‘We Continue the Change’ coalition that is pro-EU and has an anti-corruption platform won the elections, contrary to expectations. The GERB party of long-serving Prime Minister Boyko Borissov came in second. On 13 December, Parliament voted a coalition government into office.
In Hungary, the united opposition has garnered more support and appears to be ahead of Fidesz, the ruling party since 2010, according to some surveys. Opposition primaries to pick Orban’s challenger in next year’s parliamentary elections ended up with the surprising victory of Péter Márki-Zay, a small-town mayor who leads a diverse coalition of six opposition parties. His agenda is to restore democracy and the rule of law, as well as to improve the country’s relations with the EU.
In Poland, a non-partisan candidate – prof. Marcin Wiącek - was approved by the Parliament as the new ombudsperson in July 2021. This move was seen as a compromise after the Sejm rejected the candidate approved by the civil society and the three candidates associated with the ruling coalition failed to gain support in The Senate. Tens of thousands of protesters rallied in support of the EU after the Polish constitutional court clashed with the CJEU and argued that the Polish constitution overrides EU law.
2. EU institutions increasingly react to the rule of law crisis
In a major development, the European Commission has stepped up its efforts to protect the rule of law by acting against breaches in several EU Member States. While the Commission has not activated the rule of law conditionality mechanism yet, it has launched several new infringement procedures against the Member States, including Germany, Hungary, and Poland. It has also employed an unexpected tool for protecting the rule of law, withholding the approval of national plans to use the Resilience and Recovery Facility (the EU covid-19 recovery fund) for Hungary and Poland. At this point, it is certain that these funds won’t be unlocked for either country in 2021, which means they lose the chance on advance payments. While the RRF was not intended to be used as leverage over enforcing respect for EU values, it has proved to be surprisingly well suited for this purpose, as the Commission has tied approval of recovery plans to respect for the independence of judiciary and prevention of corruption which could affect their disbursement.
The Court of Justice of the European Union has been active as well with several crucial rule of law-related cases. Its July judgement and interim measure in two cases concerning the Disciplinary Chamber of the Polish Supreme Court have led to a massive fallout, leading to an unprecedented 1 million EUR daily fine over non-implementation of the interim measure in case C-204/21 and a reaction from the Polish Constitutional Tribunal, which has challenged the authority of CJEU with two judgements questioning the primacy of EU law in Poland. Of no smaller importance were the decisions from the Court concerning Hungarian measures aimed against organisations supporting asylum-seekers and Romania's failed judicial reforms.
Overall, the EU institutions have amped up their pressure on the Polish government, pushing back against the destruction of the rule of law in the country. However, the Polish government remained defiant that it will not heed external criticism and will continue its judiciary ‘reforms’. In the upcoming year, time will tell whether the financial pressure applied by the Commission will ultimately force Morawiecki and Orban’s governments to cave in and roll back some of the most problematic changes.
3. The European Court of Human Rights joins the struggle for the rule of law
The ECtHR joined the CJEU in scrutinizing controversial changes in law and practice that affect the functioning of the Polish judiciary. Some of the applications were brought before the ECtHR by individuals questioning the independence of judges that had examined their cases, by referencing to irregularities in judicial appointment procedures; other cases were brought by judges alleging that politicians had decided on their careers arbitrarily or controlled decision-making bodies and that there was no proper judicial oversight over such decisions.
The ECtHR addressed a range of issues in 2021: irregularities in the appointment of constitutional court judges in the case of Xero Flor, lack of proper reasoning and access to judicial remedies for court presidents and vice presidents who are prematurely dismissed from their positions (Broda and Bojara), the politicization of the judicial council by letting political branches pick its members (Reczkowicz) and the failure of that council to act as a safeguard against politicized appointments (Reczkowicz, Dolińska – Ficek and Ozimek).
The ECtHR also addressed rule of law issues in other EU member states. Notably, in the Todorova v Bulgaria case, the Court scrutinised interference with judicial freedom of expression. It concluded that the predominant, hidden aim of imposing sanctions on the applicant, a judicial union president who had publicly criticised the judicial council and the government over issues of judicial independence, was to penalise and intimidate her. This case is of significance in view of practices of targeting outspoken judges, which have a chilling effect on their peers and silence the debate on matters of public interest.
4. EU funding programme for civil society working on the rule of law goes operational
The European Union has been one of the biggest and most active donors when it comes to supporting civil society within the EU and abroad. However, as far as work on the rule of law, democracy, and human rights were concerned, the EU was mostly focused on supporting NGOs and initiatives outside the region. This situation was widely seen as one example of the internal/external divide within EU policies, with values supported strongly as part of EU foreign policy but far less so internally.
This situation has been addressed in 2021 with the EU launching the Citizens, Equality, Rights and Values (CERV) fund, offering to fund for civic engagement, equality and the protection and promotion of rights and EU values, including the rule of law. Apart from NGOs, the programme also allows applications from the public sector and joint applications from private entities with CSOs or public actors. While the impact of the fund is to be assessed in the longer term, the fact that the EU has noticed the need to support civil society in pushing back against the deterioration of the rule of law is a welcome development.
WHAT WENT WRONG?
1. The rule of law has deteriorated across the EU
The rule of law performance has deteriorated, with several countries slipping backwards. According to the WJP Rule of Law Index for 2021, in the EU, 14 countries and jurisdictions experienced a decline. Compared to the previous year, the decline was most significant in Poland, Hungary, Bulgaria, and Croatia. And to some degree, also in Romania and Slovenia and some western European countries, including Austria, France and Portugal.
Judicial independence has remained one of the key rule of law challenges in some member states, as confirmed by the EU Commission Rule of Law Report. According to the Report, existing protection was lowered in Poland and Hungary, and problems remained in Romania, Bulgaria and Slovakia. Eurobarometer surveys conducted among the general public also showed that in Croatia, Poland and Slovakia, the level of perceived judicial independence remained very low (below 30%).
Media freedom as a key enabler of the rule of law also remained a concern in the EU. World Press Freedom index showed sizable deterioration in Europe, with attacks against journalists and arbitrary arrests observed in a few countries, including Germany, France, Italy, Poland and Bulgaria. The grip of undemocratic leaders, such as Orbán, on the media, has not loosened. In several other countries, political pressure on media has continued to exist. The independence of public service media has been threatened in the Czech Republic and Slovenia.
2. The European Commission failed to use properly several tools at its disposal
Despite some achievements mentioned earlier, the EU has been slow and ineffective in using some of the tools available to address the rule of law decline in Poland and Hungary. One year after its adoption, the rule of law conditionality regulation has not been yet applied, despite the facts on the ground clearly calling for its application. The regulation has been challenged before the CJEU by the governments of Poland and Hungary, but that case did not suspend the validity of the regulation. In his opinion, CJEU Advocate General Manuel Campos Sánchez-Bordona concluded that these challenges were groundless and should be dismissed. The CJEU’s judgment, in this case, is expected early next year, and the European Parliament has separately taken the Commission before CJEU over inaction regarding the conditionality regulation.
Art. 7 TEU proceedings against Hungary and Poland have not moved forward in 2021. The Slovenian presidency of the EU has been in particular passive on this front, refusing to hold Art. 7 meetings. The EU rule of law report, although a welcome and useful summary of the situation in EU Member States, lacked an effective follow-up mechanism and remained disconnected from other elements of the EU rule of law toolbox.
3. Covid-19 measures continue to violate rule of law and human rights standards
The year 2021 saw the continuation of the covid-19 pandemic, with many governments employing de jure or de facto states of emergency to impose strict measures to contain the spread of the virus. Just as in 2020, many of these responses have raised serious doubts as to their respect for the rule of law and human rights. Our extensive study of 27 EU Member States’ reaction to the pandemic indicated that major issues with legality, legal certainty, transparency, and consultation of introduced measures persist across all EU Member States.
These concerns have been shared by courts across the EU, which have determined the covid-19 emergency measures to violate domestic and international standards. In Spain, the Constitutional Court found that the state of emergency introduced by the government violated the Spanish constitution. In the Netherlands, a court found an imposition of curfew to be a breach of the freedom of movement. Similarly, in Belgium, a court ordered the federal government to end all covid-19 measures due to a lack of proper legal grounds.
4. Polish government launches an attack on EU law and international standards
One of the most dangerous trends emerging in 2021 were direct challenges to the authority of European courts – the Court of Justice of the European Union and the European Court of Human Rights. The Polish Constitutional Tribunal has been at the forefront of those challenges, issuing a series of judgements aimed at disregarding the authority of CJEU (in cases P 7/20, K 3/21) and refusing to accept the jurisdiction of ECtHR (in case K 6/21). In all these cases, the Polish Tribunal has sided with the Polish government, claiming that the supremacy of the Polish constitution trumps international law. Many expert bodies and European Courts have found that the court is not independent and staffed with improperly appointed judges, and has been compromised since the early years of the current Polish government.
Polish defiance against regional courts is an extremely worrying development, as highlighted by CJEU president Koen Lenaerts in a recent interview. There is a concern that other EU Member States could follow the Polish example with similar actions aimed at undermining the common EU legal order or the European Convention on Human Rights. While a recent judgement by the Hungarian Constitutional Court which stopped short of discarding the primacy of EU law is a positive development, respect for international law by constitutional courts in EU Member States is an item to watch out for in 2022.
Democracy Reporting International (DRI) works to improve public understanding of the rule of law in the EU as part of the re:constitution programme funded by Stiftung Mercator. Sign up for DRI’s newsletter and follow us on Facebook and Twitter to find out more about the rule of law in Europe.
Photo credit: Flickr.com/Kyle Wagaman